Sack v. U.S. Department of Defense

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KATHRYN SACK,
Plaintiff,
v. Civil Action No. 12-cv-1754 (RLW)
U.S. DEPARTMENT OF DEFENSE,
Defendant.
AMENDED MEMORANDUM OPINION 1
Plaintiff Kathryn Sack, a University of Virginia graduate student, brings this Freedom of
Information Act (“FOIA”) challenge against the Department of Defense (“DoD”), vis-à-vis its
component agencies, the Defense Intelligence Agency (“DIA”) and the National Security
Agency (“NSA”). Through her remaining claims, Sack argues that DIA failed to adequately
search for records responsive to her FOIA requests and that it improperly withheld documents
under FOIA’s statutory exemptions. Additionally, Sack complains that NSA failed to categorize
her as an “educational institution” requester and wrongly failed to provide her with two free
hours of search time. The matter is presently before the Court on the Department’s Motion for
Summary Judgment. (Dkt. No. 22). Finding that DIA’s search methods were sound, and that
DIA appropriately relied upon Exemption 7(E) to withhold the contested documents from
release, the Court concludes that Sack’s claims involving DIA lack merit. With respect to NSA,
however, the Court agrees that the record contains insufficient evidence to classify Sack as an
“educational institution” requester. Additionally, the Court rejects Sack’s arguments surrounding
the two hours of free search time. Accordingly, having carefully considered the parties’ briefing,
1
The Court’s original opinion contained an error in the opening summary.
1
the entire record in this action, and the governing authorities and precedents, the Court concludes
for the reasons that follow, that the Department’s Motion will be GRANTED.
BACKGROUND
A. Factual Background
Plaintiff Kathryn Sack (“Sack”) is a University of Virginia graduate student preparing her
dissertation on the issue of polygraph bias. 2 (Compl. at ¶ 4). To gather more information in
connection with her research, Sack filed eleven different FOIA requests with DIA and NSA, all
of which generally sought information concerning the agencies’ polygraph programs. Although
Sack’s Complaint asserts thirteen (13) separate counts, the scope of her claims has narrowed
considerably during the pendency of this action. For purposes of this Opinion, the Court
summarizes only the salient facts bearing on the claims that remain in dispute. 3
1. Count II: DIA Request No. 0193-2011
On February 14, 2011, Sack filed three FOIA requests with DIA, only one of which
remains at issue. Through that request, which Sack pursues through Count II of her Complaint,
she sought “[a]ll records maintained by [DIA’s] security office representing aggregate data of
polygraph examinations.” (Dkt. No. 22-1 (“Williams Decl.”) at ¶ 10, Ex. 3). DIA originally
responded to Sack about one week later, on February 22, 2011, assigning her inquiry Request
No. 0193-2011. (Id. ¶ 11, Ex. 4). Inexplicably, Sack’s request then sat dormant for quite some
2
In the Complaint, the plaintiff is identified as “Kathryn Sack.” Most of the documents
found elsewhere in the record, though, refer to a “Katelyn Sack.” This incongruity is never
explained by the parties, but the Court presumes that both names refer to the plaintiff here.
3
For simplicity’s sake, the Court summarizes Sack’s claims in the sequence they appear in
the Complaint, recognizing that, in some cases, the facts do not proceed chronologically.
2
time until April 2012, when DIA eventually tasked the National Center for Credibility
Assessment (“NCCA”) to search for responsive records. (Id. ¶ 12). 4
While Sack’s request expressly sought records only from DIA’s Office of Security, DIA
determined that responsive information was most likely to be located within NCCA, rather than
the Office of Security. (Id. ¶¶ 6, 8). In turn, NCCA searched its electronic records systems for
information responsive to the request, using its “ProCite Database” and the NCCA shared
computer electronic storage drive; NCCA also searched its paper filing system. (Id. ¶ 12). For
its electronic search, NCCA used keywords it thought calibrated to locate any potentially
responsive records, including “bias,” “gender,” “race,” “age,” and “sexual orientation.” (Id.).
Moreover, though DIA did not reasonably expect any results, DIA also asked the Office of
Security to review its records, but the Office of Security confirmed that it does not maintain any
aggregate data responsive to Sack’s request. (Id.). Ultimately, neither NCCA nor the Office of
Security located any records responsive to this particular request.
2. Counts V and VI: NSA Request Nos. 64010 and 64011
Sack also submitted three FOIA requests to NSA on or around February 14, 2011. Two
of these requests—pled through Counts V and VI of her Complaint—remain in dispute. Therein,
Sack sought records representing aggregate data of polygraph examinations and records
pertaining to equal employment opportunity rules and polygraphs, respectively. (See Compl. at
¶¶ 32-43). Sack also sought classification as an “academic” or “educational institution”
4
DIA explains—and Sack does not dispute—that NCCA “serves as the government’s
premiere educational center for polygraph and other credibility assessment technologies and
techniques. Its central mission is to assist federal agencies in the protection of U.S. citizens,
interests, infrastructure and security by providing the best education and tools for credibility
assessment and to manage the Quality Assurance Program that develops, implements, and
provides oversight of psychophysiological detection of deception (PDD) standards for the federal
polygraph programs.” (Williams Decl. at ¶ 6).
3
requester, which would have exempted her from the search-related costs associated with her
request. (See Dkt. No. 22-3 (“Janosek Decl.”) at Ex. 1). NSA acknowledged receipt of Sack’s
requests on March 10, 2011, assigning them case numbers 64010 and 64011. (Id., Ex. 2).
Through this same response, NSA stated that Sack could not be classified as an “academic”
requester, explaining that she did not meet the criteria for “educational institution” as defined in
the Code of Federal Regulations; more specifically, NSA did not believe Sack’s request was
made on behalf of the University of Virginia. (Id. ¶ 9, Ex. 2). 5 Instead, NSA classified Sack as
an “all other” requester, which meant that under DoD regulations, Sack was obligated to pay for
search time in excess of two hours. (Id. at Ex. 2). Based on its initial assessment, NSA
estimated that the applicable search costs (not including the two free hours of search time) would
amount to approximately $880.00. (Id. ¶ 14, Ex. 2). NSA explained that Sack would be required
to remit one-half of the total cost estimate ($440.00) before NSA would commence its search
efforts.
Rather than doing so, Sack appealed this determination in May 2012. (Id. ¶ 16, Ex. 3).
As part of that appeal, Sack attached a letter from the University of Virginia’s Director of
Graduate Studies, Professor Jeffrey Jenkins, stating that Sack’s objectives were “consistent with
[the University’s] scholarly research goals” and confirming that Sack was “acting as a
representative of the University of Virginia’s Department of Politics.” (Id., Ex. 3). The NSA
FOIA Appeal Authority denied Sack’s appeal by letter dated January 17, 2013. (Id. ¶ 17, Ex. 4).
NSA found Mr. Jenkins’ letter insufficient because it confirmed that Sack was “a Ph.D. student
and President’s Fellow rather than a member of the faculty,” and because it did not come from
5
Sack also sought a “public interest” fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii), which
NSA denied in this same response. While part of her original claims in this case, Sack no longer
challenges NSA’s determination on the “public interest” waiver. (See Pl’s Opp’n at 2).
4
the Department’s Chair. (Id.). NSA also found significant that Sack’s counsel was representing
only Sack individually, and not the University of Virginia or its Department of Politics. (Id.).
Thus, Sack remained classified as an “all other” requester, with NSA requiring that Sack remit a
portion of the estimated search costs before it would process her requests.
3. Count IX: DIA Request No. 0069-2010
On October 23, 2009, Sack filed a FOIA request with DIA seeking Department of
Defense Polygraph Institute (“DoDPI”) and Defense Academy of Credibility Assessment
(“DACA”) records that would reflect polygraph examination bias research and studies.
(Williams Decl. at ¶ 9, Ex. 8).6 Although DIA acknowledged receipt on December 18, 2009, as
with Sack’s other requests, it seems DIA did not take any further action for some time. (Id. ¶
17). Eventually, in or around April 2012, DIA conducted a search for records within NCCA,
both within its paper filing system and its electronic records. (Id. ¶ 18). For purposes of the
electronic review, NCCA again searched its ProCite Database and the NCCA shared computer
electronic storage drive, using the keywords “bias,” “gender,” “race,” “age,” and “sexual
orientation.” (Id.). Through its search efforts, DIA located three documents (totaling 42 pages)
that were responsive to Sack’s request; all three documents were released in full, and are
summarized in DIA’s Vaughn index at entries V-8, V-9, and V-10. (Id.; see also Dkt. No. 22-2
(“DIA Vaughn Index”)).
4. Counts XI and XII: DIA Request Nos. 0041-2012 and 0059-2012
Sack separately filed two FOIA requests with the Federal Investigative Services Division
(“FIS”) of the Office of Personnel Management. The first of these requests, submitted on July 5,
2011, sought records about polygraphers and polygraph examinations. (See Compl. at ¶ 67-68).
6
DoDPI and DACA are predecessors to the NCCA. (Williams Decl. at ¶ 6).
5
The second request was filed on October 14, 2011, and sought “records pertaining to periodic
reviews of agencies’ polygraph programs.” (Id. ¶ 74). With respect to the first request, FIS
referred two records to DIA for direct response: a Quality Assurance Program Inspection Report,
and a Polygraph Memorandum of Agreement. (Williams Decl. at ¶ 22). Invoking FOIA
Exemptions 3, 6, and 7(E), DIA withheld the Quality Assurance Program Inspection Report in
full, and though it produced the Polygraph Memorandum of Agreement, DIA redacted portions
of the document pursuant to FOIA Exemptions 3 and 6. (Id. ¶ 23, Ex. 11; Vaughn Index). Sack
was notified of this determination by letter dated March 5, 2013. (Williams Decl. at Ex. 11). As
for the second request, FIS referred another seven records to DIA for direct response, all of
which consisted of additional Quality Assurance Program Inspection Reports. (Williams Decl. at
¶ 24; Vaughn Index). DIA withheld all seven documents from production, pursuant to FOIA
Exemptions 3, 6, and 7(E). (Id.).
5. Count XIII: DIA Request No. 0135-2011
Sack submitted a separate FOIA request to DIA on December 23, 2010, seeking all
correspondence dating back to 2002 between DIA employees and Sheila Reed, who the parties
describe as “a well-known polygraph researcher.” (Williams Decl. at ¶ 25, Ex. 12). After
confirming receipt of this request by letter dated January 5, 2011, it appears DIA did not pursue
Sack’s request any further for some time. (Id. ¶ 26). Eventually, NCCA conducted a search for
potentially responsive materials, within both its paper files and its electronic records. (Id.). As
search terms, DIA utilized “Sheila Reed” and “Reed, Sheila,” searching its ProCite Database and
the NCCA share computer electronic storage drive. (Id.). No responsive records were located as
a result of NCCA’s search, and DIA advised Sack of these results by letter on January 23, 2013.
(Id. ¶¶ 27-28, Ex. 13).
6
B. Procedural History
Sack filed her thirteen-count complaint initiating this FOIA action against DoD on
October 30, 2012. 7 Since then, Sack has withdrawn or abandoned several claims. Through the
Joint Status Report, Sack voluntarily dismissed Count III on January 18, 2013. (See Dkt. No. 12
at ¶ 1(3)). The parties then proceeded with a stipulated summary judgment briefing schedule.
The Department filed its Motion for Summary Judgment on March 22, 2013, (Dkt. No. 22
(“Def.’s MSJ”)), and through her opposition brief, filed on April 22, 2013, Sack expressly
withdrew her claims under Counts I, IV, and VIII, (see Dkt. No. 23 (“Pl.’s Opp’n”) at 2-3).
Finally, the Department advised the Court through its reply brief that Sack has withdrawn her
claims under Count X. (See Dkt. No. 28-2). At this juncture, then, only Counts II, V, VI, VII,
IX, XI, XII, and XIII remain in dispute.
In support of its motion, DoD submitted several declarations describing DIA’s and
NSA’s response efforts to Sack’s FOIA requests. As to DIA, the Court received the declaration
of Alesia Williams, Chief of the FOIA Services Section within the FOIA and Declassification
Services Branch for the DIA. (See Williams Decl.). In addition, Ms. Williams submitted a
supplemental declaration along with the Department’s reply. (See Dkt. No. 28-1 (“Supp.
Williams Decl.”)). The Department also filed a detailed Vaughn index, describing DIA’s
withholdings and redactions under FOIA’s statutory exemptions. (See Vaughn Index). With
7
Originally, Sack’s claims were part of a larger lawsuit. Along with DoD, that lawsuit
involved FOIA claims against the Central Intelligence Agency, the Department of Justice, the
Office of Personnel Management, and the Office of the Director of National Intelligence. On the
defendants’ motion, the Court severed Sack’s claims and ordered Sack to refile those counts
relating to DoD through a separate action. Two related FOIA actions remain pending before the
undersigned—Sack v. Central Intelligence Agency (12-cv-537) and Sack v. U.S. Department of
Justice (12-cv-1755)—but the claims in those matters will be resolved separately and are not
otherwise addressed in this Memorandum Opinion.
7
respect to NSA, the Court received the declaration of Diane Janosek, Deputy Associate Director
for Policy and Records for the NSA.” (See Janosek Decl.). 8
DoD’s Motion for Summary Judgment is now fully briefed and ripe for decision.
ANALYSIS
Through her remaining claims, Sack challenges DIA’s and NSA’s compliance with their
FOIA obligations in several respects. First, through Counts II, IX, and XIII, Sack asserts that
DIA failed to perform an adequate search in response to her requests. Second, Sack insists that
DIA improperly invoked FOIA Exemption 7(E) to fully withhold records responsive the FOIA
requests described in Counts XI and XII. Third, Sack complains that NSA wrongly denied her
request to be classified as an “educational institution” requester, treating her as an “all other”
requester instead. And fourth, Sack argues that NSA improperly failed to provide her with two
free hours of search time, as “all other” requesters are entitled to receive. After summarizing the
overall legal principles governing its analysis, the Court addresses each issue in turn.
A. Applicable Legal Standards
“FOIA was intended to ‘pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.’” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir.
2011) (quoting U.S. Dep’t of Air Force v. Rose, 425 U.S. 325, 361 (1976)). In view of this
objective, FOIA requires federal agencies to release all records responsive to a proper request,
unless the records fall within any of the statute’s nine enumerated exemptions. Loving v. U.S.
8
DoD also submitted an affidavit from David Hardy, the Federal Bureau of Investigation’s
Section Chief of the Record/Information Dissemination Section, Records Management Division.
(See Dkt. No. 22-4 (“Hardy Decl.”). Mr. Hardy attested to DoD’s justification for redacting the
name and telephone number of an FBI employee under FOIA Exemptions 6 and 7(C). (See
generally id.). Insofar as Sack does not challenge any redactions under Exemptions 6 or 7(C),
however, the Court had no occasion to rely on Mr. Hardy’s declaration in resolving this motion.
8
Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008); see 5 U.S.C. § 552(b) (listing exemptions).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Hainey v. U.S. Dep’t of Interior, 925 F. Supp. 2d 34, 40 (D.D.C. 2013). As in all cases,
“[s]ummary judgment is in order where, viewing the record in the light most favorable to the
non-moving party, the court finds that there remains no ‘genuine issue as to any material fact.’”
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (quoting
FED. R. CIV. P. 56(c)).
When a requester challenges the adequacy of an agency’s search, the agency is entitled to
summary judgment on such a claim if it can “demonstrate beyond material doubt that its search
was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540,
542 (D.C. Cir. 1990)); see also Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.
Cir. 1995). In many cases, “[s]ummary judgment may be based on affidavit, if the declaration
sets forth sufficiently detailed information for a court to determine if the search was adequate.”
Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (internal
citation and quotation marks omitted). “If, however, the record leaves substantial doubt as to the
sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at
542. The governing standard “is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate,”
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original),
and “adequacy is measured by the reasonableness of the effort in light of the specific request,”
Larson v. U.S. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (citation omitted). Put another
way, to secure summary judgment, “the agency must show that it made a good faith effort to
9
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990).
When an agency withholds records in response to a FOIA request, the agency “bears the
burden of proving the applicability of claimed exemptions.” ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 619 (D.C. Cir. 2011); Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865,
869 (D.C. Cir. 2009). Inasmuch as “FOIA mandates a strong presumption in favor of disclosure
. . . the statutory exemptions, which are exclusive, are to be narrowly construed.” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (internal citations and quotation
marks omitted). Summary judgment is proper for the agency when its “affidavits describe the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Larson, 565 F.3d at 862 (quoting
Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Wolf
v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)). As a result, “[t]o successfully challenge an
agency’s showing that it complied with the FOIA, the plaintiff must come forward with ‘specific
facts’ demonstrating that there is a genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113,
119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
10
B. The Adequacy Of DIA’s Searches
1. Count II
Count II concerns Sack’s request for information from DIA’s Office of Security
“representing aggregate data of polygraph examinations.” (See Compl. at ¶ 14). As set forth
above, DIA’s ensuing search for records yielded no results. Displeased with this result, Sack
now contests the adequacy of DIA’s search efforts on several fronts. First, Sack complains that
DIA too narrowly interpreted her request as limited to “bias-related” records, when the request
sought aggregate polygraph data generally and had “nothing to do with bias.” (Pl.’s Opp’n at 7).
Second, Sack assails DIA for listing only some of the terms used during its search, rather than all
of the terms, arguing that this showing cannot satisfy DIA’s obligation to demonstrate an
adequate search. Third, Sack contends that DIA wrongly focused its search on polygraph
examiners, rather than polygraph examinations, as the request sought.
The Court can quickly dispense with the latter two arguments. Both contentions spring
from the content of Ms. Williams’ original declaration in this case. Therein, Ms. Williams
attested that NCCA conducted its electronic search using “keywords, such as ‘bias,’ ‘gender,’
‘race,’ ‘age,’ and ‘sexual orientation.’” (Williams Decl. at ¶ 12) (emphasis added). She also
averred that “the Office of Security reported that the office does not maintain any aggregate data
concerning polygraph examiners.” (Id.) (emphasis added). Sack seizes upon these statements in
insisting that DIA has not satisfied its FOIA obligations—both because the agency failed to
delineate the full contours of its review (providing an illustrative, rather than exhaustive, list of
search terms), and because it searched for the wrong records (i.e., data regarding polygraph
examiners, rather than polygraph examinations). Whatever weight these arguments might carry
in another case, Ms. Williams’ supplemental declaration neutralizes their impact here. Ms.
Williams confirmed that despite her inclusion of the phrase “such as” in her original declaration,
11
the search terms she listed consisted of the entire universe of terms used during DIA’s electronic
review of NCCA records. (Supp. Williams Decl. at ¶ 5). Additionally, Ms. Williams explained
that her reference to “polygraph examiners” was simply a typographical error; she confirmed that
DIA actually interpreted Sack’s request as seeking “aggregate data of polygraph examinations,”
and she confirmed with the Office of Security and NCCA that the offices interpreted Sack’s
request the same and searched accordingly. (Id. ¶¶ 4, 6-7). In view of these clarifications,
Sack’s arguments on these points are unavailing.
Sack’s remaining argument—that DIA inappropriately narrowed her request as seeking
only bias-related information—merits some further discussion. But ultimately, this theory too
fails to persuade. According to Sack, her request was broadly-phrased, calling for all aggregate
data regarding polygraph examinations. And because DIA limited its electronic search of NCCA
records to bias-related keywords, Sack insists that this search cannot be deemed adequate. For
its part, DIA rejoins that after consulting with NCCA leadership, it was determined that a search
using the term “aggregate data” would not yield any results. Instead, DIA and NCCA leadership
determined that “searching for information related to bias or unfairness was most likely to locate
records responsive to plaintiff’s request.” (Supp. Williams Decl. at ¶ 5). In the Court’s view,
both sides overlook a critical issue in pressing these arguments—the specific scope of Sack’s
FOIA request. Sack’s request was explicitly limited to records maintain by DIA’s “security
office,” (Williams Decl., Ex. 2), which means that the parties’ debate surrounding DIA’s search
of NCCA records—as compared with records maintained by the Office of Security, as Sack
actually requested—largely misses the mark.
As our Circuit has repeatedly recognized, “adequacy is measured by the reasonableness
of the effort in light of the specific request.” Larson, 565 F.3d at 869 (quoting Meeropol v.
12
Meese, 790 F.2d 942, 956 (D.C. Cir. 1986)). This means that an agency “is not obliged to look
beyond the four corners of the request for leads to the location of responsive documents.”
Kowalczyk v. U.S. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). Here, the four corners of
Sack’s request clearly limited the scope of records she was seeking to records maintained by the
Office of Security, not the NCCA. And though Sack summarily complains that DIA fails to
describe its search efforts in relation to the Office of Security altogether, the Court disagrees.
Ms. Williams avers that DIA consulted with “senior leaders” in the Office of Security,
and that those leaders confirmed the Office of Security does not maintain aggregate data; instead
its records systems are limited to “the individual personal polygraph examination reports of the
many DIA and DoD employees who have been required to submit to a polygraph examination.”
(Supp. Williams Decl. ¶ 7). In addition, “[t]he Office of Security leadership confirmed that it has
not endeavored to develop aggregate data from these individual files or reports.” (Id.). The
Court finds that this explanation—derived from DIA’s consultation with senior officials familiar
with the Office of Security’s records—demonstrates that DIA appropriately approached Sack’s
request and that a more detailed search on the Office of Security’s part would have been “futile
and . . . unnecessary.” American-Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland
Sec., 516 F. Supp. 2d 83, 88 (D.D.C. 2007); see also Amnesty Int’l U.S.A. v. CIA, No. 07 Civ.
5435, 2008 WL 2519908, at *11 (S.D.N.Y. June 19, 2008) (“FOIA does not demand a search
that would be futile.”). 9
Moreover, setting aside the question of whether the scope of Sack’s request obligated
DIA to search NCCA’s records systems, the Court agrees that it was at least reasonable for DIA
9
Relatedly, DIA’s Office of Security had no obligation to compile its individual polygraph
reports into an aggregate form to respond to Sack’s request. FOIA “does not impose any duty on
the agency to create records.” ACLU, 655 F.3d at 5 n.3 (quoting Forsham v. Harris, 445 U.S.
169, 186 (1980)) (internal alterations omitted).
13
to do so, given its belief that responsive information was most likely to be found within NCCA
records, if anywhere. See, e.g., Lechliter v. Rumsfeld, 182 F. App’x 113, 115-16 (3d Cir. 2006)
(deeming reasonable the agency’s decision to search two offices “determined to be the only ones
likely to possess responsive documents”); Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice, 822 F. Supp. 2d 12, 19 (D.D.C. 2011) (finding it reasonable to direct search
efforts “at the people and offices most likely to have responsive information”). And in carrying
out that aspect of its search, it was equally reasonable for DIA to rely upon the bias- and EEO-
related search terms it used. As noted, DIA determined, in consultation with NCCA officials,
that a search for “aggregate data” would have been fruitless. In turn, the agency interpreted the
scope of Sack’s request in a manner consistent with the scope of Sack’s accompanying FOIA
requests to DIA, all of which sought bias- and EEO-related information related to polygraphs.
(See Williams Decl., Exs. 1, 5). Under the totality of the circumstances, this was an appropriate
approach. See Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 363 (4th Cir. 2009)
(concluding that agency’s “decision to use the searches conducted in response to [prior, similar]
requests as the starting point for responding to [current] requests was not inherently unreasonable
and appears to be a practical and common-sense approach,” since “[t]he requests sought similar
information related to the same subject matter”).
In sum, the Court concludes that DIA met its FOIA obligations to conduct a reasonable
and adequate search for potentially responsive records as to Count II of the Complaint.
2. Count IX
Through Count IX, Sack challenges DIA’s response to her request for studies pertaining
to polygraph bias. While DIA produced three responsive records, detailed at entries V-8, V-9,
14
and V10 of DIA’s Vaughn index, Sack nevertheless contests the adequacy of DIA’s search
efforts. In so doing, Sack presses two familiar arguments. Neither is persuasive.
First, Sack assails Ms. Williams’ use of the phrase “such as” in introducing the search
terms used by NCCA. The Court rejects this argument for the reasons already stated; as with
Count II, Ms. Williams subsequently confirmed that the search terms listed were the only terms
used by DIA in carrying out this search. (Supp. Williams Decl. at ¶ 8). Second, Sack again
complains about DIA’s failure to provide specific information concerning the nature of the
search performed within the Office of Security. But again, Sack is wrong. As before, Ms.
Williams attests that through discussions with Office of Security leadership, DIA determined that
it was “highly unlikely that [responsive] records would be located” within the office, insofar as
the Office of Security maintains only individual employee polygraph reports, and not research or
studies about polygraph biases. (Id. ¶¶ 7-8). This explanation sufficiently establishes that a
more detailed search was unnecessary and would have been futile. See American-Arab Anti-
Discrimination Comm., 516 F. Supp. 2d at 88; Amnesty Int’l, 2008 WL 2519908, at *11.
Moreover, despite the unlikelihood that responsive records would be found in the Office of
Security, the record establishes that the Office of Security searched its electronic files anyway,
using the same keywords as NCCA—keywords with which Sack does not take issue for purposes
of this particular request. (Williams Decl. at ¶ 18; Supp. Williams Decl. at ¶¶ 8-9). Despite
these efforts, DIA did not uncover any responsive records. Simply put, DIA’s search efforts in
response to this request comported with its obligations under FOIA, and none of Sack’s
arguments establishes otherwise.
15
3. Count XIII
Sack next takes issue with DIA’s response to her request for correspondence between DIA
employees and Sheila Reed, as pled through Count XIII. In so arguing, Sack mounts two
separate challenges to the adequacy of DIA’s search. First, Sack argues that DIA wrongly
confined its search efforts to NCCA, when it should have reviewed records held by other
components of DIA, particularly the Office of Security. Second, Sack argues that even DIA’s
search within NCCA fell short, insofar as DIA inappropriately neglected to review NCCA’s
email systems for potentially responsive documents. Neither theory is availing.
To begin with, the record establishes that DIA’s focus on NCCA’s records systems, as
opposed to documents with the Office of Security, was reasonable and appropriate. As set forth
in Ms. Williams’ declaration, DIA consulted directly with leadership from the Office of Security
and ultimately determined that a search of Office of Security records was unlikely to uncover
any responsive records. (Supp. Williams Decl. at ¶ 16). According to Ms. Williams, “[t]he
Office of Security does not conduct polygraph research,” but is instead focused on “conduct[ing]
polygraph examinations based on the guidance provided by the NCCA.” (Id.). She further avers
that none of the leadership staff members are personally acquainted with Ms. Reed, such that
they would be likely to possess responsive email messages; indeed, the Office of Security
leadership confirmed that they have not had any communication with Ms. Reed. (Id.). Based on
this assessment, the Court agrees that an additional search of the Office of Security’s records was
unnecessary. See American-Arab Anti-Discrimination Comm., 516 F. Supp. 2d at 88; Amnesty
Int’l, 2008 WL 25119908, at *11. To the contrary, based on NCCA’s mission of assisting
federal agencies with education and tools for credibility assessment, it was appropriate for DIA
to conclude that any responsive records were likely to be found within NCCA, and to focus its
search efforts accordingly. See Lechliter, 182 F. App’x at 115-16; Citizens for Responsibility &
16
Ethics in Wash., 822 F. Supp. 2d at 19. At bottom, Sack is effectively arguing that responsive
documents might exist elsewhere within DIA, but she offers nothing beyond her own supposition
in support of this theory. This approach simply comes up short. See, e.g., Hodge v. FBI, 703
F.3d 575, 580 (D.C. Cir. 2013) (“As we have said before, mere speculation that as yet uncovered
documents may exist does not undermine the finding that the agency conducted a reasonable
search.”) (internal quotation marks and citation omitted).
As for Sack’s second argument, it is now effectively moot. Ms. Williams confirms that
DIA has since undertaken a supplemental search of NCCA’s email systems and archives for
potentially responsive records, using Ms. Reed’s first and last name as search terms in the “to”
and “from” fields of messages. (Supp. Williams Decl. at ¶ 15). These additional search efforts
did not yield any responsive records. Accordingly, the Court concludes that DIA discharged its
FOIA obligations with respect to Sack’s claim under Count XIII.
C. DIA’s Withholdings: FOIA Exemption 7(E)
Along with her claims surrounding DIA’s search efforts, Sack also insists that DIA
improperly withheld responsive documents under FOIA’s statutory exemptions. In particular,
Sack contends that DIA wrongly invoked Exemption 7(E) to withhold the various Quality
Assurance Program Inspection Reports (“QAP Reports”) that were uncovered during DIA’s
search. (See Vaughn Index, V-1, V-2, V-3, V-4, V-5, V-6, V-7, V-11). 10
“Exemption 7(E) shields information if ‘disclosure could reasonably be expected to risk
circumvention of the law.’” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1192 (D.C. Cir. 2009)
(quoting 5 U.S.C. § 552(b)(7)(E)). In this Circuit, “Exemption 7(E) sets a relatively low bar for
10
Although DIA redacted portions of these same documents (and others) pursuant to FOIA
Exemptions 3, 6, and 7(C), Sack does not challenge the propriety of these withholdings. (See
Pl.’s Opp’n at 11). Instead, Sack strictly takes issue with DIA’s reliance on Exemption 7(E) to
withhold the entirety of the above-referenced documents in full.
17
the agency to justify withholding: ‘Rather than requiring a highly specific burden of showing
how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate
logically how the release of the requested information might create a risk of circumvention of the
law.’” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (quoting Mayer Brown LLP, 562 F.3d
at 1194) (alteration in original). With respect to the QAP Reports at issue, DIA maintains that
“disclosure of this particular information could diminish the effectiveness of polygraph
examination as an investigative tool.” (Williams Decl. at ¶ 25). As DIA explains things, “the
role of the NCCA in examining the polygraph programs of other agencies”—and, in turn, in
creating these QAP Reports—“was to identify the potential weaknesses or vulnerabilities that
may allow bad actors to fool that agency and conduct illegal activities without detection.” (Id. ¶
26). According to DIA, then, “[i]f this information [were] disclosed to the general public, . . . a
determined bad actor could identify agencies with greater polygraph program vulnerabilities”
that “could then be exploited.” (Id.). The Court agrees that this explanation satisfies Exemption
7(E)’s standards to justify DIA’s withholdings.
None of Sack’s arguments to the contrary compel a different outcome. Sack first seeks to
distinguish between polygraph examinations conducted as part of a criminal investigation, on the
one hand, and employment-related polygraph programs, on the other. In her view, while the
release of information concerning polygraph examinations of criminal suspects could jeopardize
public safety and risk the subversion of law—thus justifying the withholding of “all polygraph
information,” (see Pl.’s Opp’n at 14) —details surrounding the employment-screening polygraph
processes used by federal agencies pose no such risk. While the Court recognizes that there are
certainly some distinctions between the two scenarios, neither the case law nor common sense
supports the hard line in the sand Sack seeks to draw. True, much of the precedent supporting the
18
withholding of polygraph information under Exemption 7(E) arises in the criminal investigatory
context. See, e.g., Piper v. U.S. Dep’t of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003)
(collecting cases). But the D.C. Circuit’s precedents make clear that the application of
Exemption 7(E) should not be so narrowly cabined. As DIA rightly observes, our Court of
Appeals has upheld the invocation of Exemption 7(E) to withhold information that could
reasonably be expected to allow insight into the CIA’s clearance and investigatory processes
used during the background investigations of its officers. See Morley v. CIA, 508 F.3d 1108,
1128-29 (D.C. Cir. 2007) (“It is self-evident that information revealing security clearance
procedures could render those procedures vulnerable and weaken their effectiveness at
uncovering background information on potential candidates.”). Cf. Tax Analysts v. IRS, 294 F.3d
71, 79 (D.C. Cir. 2002) (“An agency may seek to block the disclosure of internal agency
materials relating to guidelines, techniques, sources, and procedures for law enforcement
investigations and prosecutions, even when the materials have not been compiled in the course of
a specific investigation.”). The Circuit’s reasoning in Morley applies with equal force here.
Disclosure of the QAP Reports could reasonably be expected to circumvent the efficacy
of background investigations undertaken by federal agencies. Indeed, these concerns are
particularly heightened in this case, given that the QAP Reports in contention pertain to the
polygraph screening programs of federal law enforcement agencies—the United States Secret
Service; the Bureau of Customs and Border Protection; the Bureau of Alcohol, Tobacco,
Firearms, and Explosives; and the Drug Enforcement Administration. (See Vaughn Index V-1,
V-2, V-3, V-4, V-5, V-6, V-7, V-11). The Court agrees that placing this information in the
public domain at least creates a risk that bad actors could leverage those details to subvert the
background screening process, thereby gaining access to sensitive (if not classified) information
19
that could be exploited to harm national security and homeland security interests. The Court thus
rejects Sack’s contention that because the QAP Reports relate to employment-based polygraph
programs, their disclosure does not implicate the sort of risks that would justify the invocation of
Exemption 7(E).
Second, Sack asserts that even though some of the information in the QAP reports may
be properly exempt from disclosure, DIA failed to satisfy its segregability obligations to release
information that, at least in Sack’s mind, poses no risk of circumvention of the law. More
specifically, Sack does not dispute that the sections of the QAP Reports “describing uncorrected
vulnerabilities in agencies’ polygraph programs is properly exempt” under Exemption 7(E).
(Pl.’s Opp’n at 11) (emphasis in original); (Id. at 14) (“Sack concedes that information which
would highlight current vulnerabilities in intelligence and law enforcement agencies’
employment screening polygraph programs would be properly exempt.”) (emphasis in original).
Instead, Sack takes issue with DIA’s withholding of those aspects of the QAP Reports pertaining
to vulnerabilities that “have been fixed or did not exist in the first place.” (Id.). In the Court’s
view, this is a distinction without a meaningful difference. Forcing DIA to release details
concerning the efficacy of polygraph programs used by federal law enforcement agencies—
whether related to vulnerabilities, strengths, or otherwise—implicates the threats and dangers
outlined above, creating at least a risk that subversive individuals will be armed with advanced
knowledge of the procedures used by the United States to screen applicants for sensitive
employment positions and security clearances. In short, Sack’s efforts to cast various aspects of
the withheld QAP Reports outside of Exemption 7(E)’s reach are simply unpersuasive.
Finally, Sack assails DIA for assertedly misrepresenting that the QAP Reports were
voluntarily created at the request of agencies, when the QAP Reports were mandated under
20
Office of Personnel Management policy. Sack suggests that these circumstances undermine the
propriety of DIA’s withholdings. For its part, DIA disclaims any intent to “leave the impression
that a law enforcement agency pursues this type of inspection without any requirement to do so.”
(Supp. Williams Decl. at ¶ 13). Either way, this argument is much ado about nothing. Whether
the QAP Reports are created in connection with mandatory or voluntary inspections, the end
result is the same: the content of these documents summarizes the polygraph programs of federal
law enforcement agencies, and for the reasons stated, the release of that information “could
reasonably be expected to risk circumvention of the law.” Mayer Brown LLP, 562 F.3d at 1192.
In sum, the Court agrees that DIA has met its burden to demonstrate that the QAP
Reports uncovered during its search were properly withheld under Exemption 7(E).
D. Sack’s Request That NSA Classify Her As An “Educational Institution” Requester
Unlike her claims against DIA, Sack’s remaining claims against NSA do not stem from
an allegedly inadequate search or the invocation of supposedly inapplicable exemptions. Indeed,
with respect to the specific FOIA requests at issue, NSA did not even undertake a search for
potentially responsive records, and it certainly did not withhold any such records under FOIA’s
statutory exemptions. Rather, Sack alleges that NSA improperly refused to classify her as an
“educational institution” requester for purposes of FOIA’s fee provisions.
Under FOIA, fees assessed in connection with a request generally include “reasonable
standard charges for document search, duplication, and review, when records are requested for
commercial use.” 5 U.S.C. § 552(a)(4)(A)(ii)(I). That said, “[t]he fees required by FOIA are
reduced for certain categories of requesters.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 122
F. Supp. 2d 13, 20 (D.D.C. 2000). As relevant here, “when records are not sought for
commercial use and the request is made by an educational . . . institution,” the statute provides
21
that “fees shall be limited to reasonable standard charges for document duplication.” 5 U.S.C. §
552(a)(4)(A)(ii)(II). In other words, when records are sought by an “educational institution”—as
that term is interpreted in the FOIA context—the requester is not assessed fees for time spent
searching for and reviewing potentially responsive records; the requester is responsible solely for
duplication costs. See Nat’l Sec. Archive v. U.S. Dep’t of Def., 880 F.2d 1381, 1382-83 (D.C.
Cir. 1989) (“In such cases, an agency may impose upon the requester only the cost of duplicating
the records it releases.”). The Court has jurisdiction to review an agency’s fee-category
determination. Elec. Privacy Info. Ctr. v. U.S. Dep’t of Def., 241 F. Supp. 2d 5, 9 (D.D.C. 2003).
And though the appropriate scope of judicial review appears somewhat unsettled, see Nat’l Sec.
Archive, 880 F.2d at 1383 (declining to resolve the question), both parties here agree that the
Court’s review should be de novo, and limited to the record before NSA at the time of its
determination. With this framework in mind, the Court turns to the question at hand.
Sack maintains that as a representative of the University of Virginia’s Department of
Political Science—and, more specifically, as a University representative seeking information in
furtherance of the Department’s scholarly research goals—she should have been classified under
the “educational institution” fee category. For its part, NSA rejoins that the information put
forward by Sack was insufficient to establish that she was acting on behalf of the University or
the Department at the time she submitted her FOIA requests, rather than pursuing her own
individual research goals. While both sides mount credible arguments in support of their
positions, on balance, the Court agrees with NSA that Sack failed to present sufficient evidence
to justify her classification as an “educational institution” requester.
The Court notes at the outset that there is a dearth of authority concerning this particular
question. As a starting point, DoD regulations define the term “educational institution” as:
22
[A] pre-school, a public or private elementary or secondary school, an institution
of graduate high education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
32 C.F.R. § 286.28(e)(4). Further, the OMB fee guidelines—to which agency regulations must
conform, 5 U.S.C. § 552(a)(4)(A)(i)—make clear that the “educational institution” category
extends to representatives acting on behalf of the institution, as long as the request “serves a
scholarly research goal of the institution.” OMB Uniform Freedom of Information Act Fee
Schedule and Guidelines, 52 Fed. Reg. 10,012, 10,014 (Mar. 27, 1987); see also 132 Cong. Rec.
S14298 (Sept. 30, 1986) (remarks of Sen. Leahy) (“A request made by a professor or other
member of the professional staff of an educational . . . institution should be presumed to have
been made by the institution.”). The OMB fee guidelines elaborate on this concept with some
concrete examples, explaining that:
[A] request from a professor of geology at a State university for records relating
to soil erosion, written on letterhead of the Department of Geology, could be
presumed to be from an educational institution. A request from the same person
for drug information from the Food and Drug Administration in furtherance of a
murder mystery he is writing would not be presumed to be an institutional
request, regardless of whether it was written on institutional stationary.
* * *
The institutional versus individual test would apply to student requests as well. A
student who makes a request in furtherance of the completion of a course of
instruction is carrying out an individual research goal and the request would not
qualify . . . .
52 Fed. Reg. at 10,014. As explained in the Justice Department FOIA Guide, “[t]o qualify for
inclusion in this fee subcategory, the request must serve a scholarly research goal of the
institution, not an individual goal. Thus, a student seeking inclusion in this subcategory, who
‘makes a request in furtherance of the completion of a course of instruction is carrying out an
individual research goal,’ and would not qualify as an educational institution requester.” U.S.
Department of Justice, Guide to the Freedom of Information Act, p. 102 (2009) (emphasis
23
added) (citing the OMB fee guidelines). As one commentator recently conceded (plaintively),
the OMB fee guidelines confirm that individual research projects serve a “training” function for
the student and do not meet the FOIA educational institutional exemption. Pall, The High Costs
of Costs: Fees as Barriers to Access Within the United States and Canadian Freedom of
Information Regimes, 7 Cardozo Pub. L. Pol'y & Ethics J. 599, 622 (2009). The wisdom of this
statutory and regulatory scheme is not before the Court, only its application to the record.
Under this framework, the Court finds that Sack did not sufficiently establish she was
acting on behalf of the University’s Department of Politics through her requests, or that she was
seeking the requested information in furtherance of the University’s scholarly goals. As an
initial matter, Sack’s original proffer to the NSA—essentially consisting of her own, conclusory
assertion that her requests fell under the “educational institution” category, (see Janosek Decl.,
Ex. 1)—was plainly inadequate. On appeal, Sack supplied NSA with a letter—written on
University of Virginia letterhead and signed by the Director of Graduate Studies in the
Department of Politics, Professor Jeffrey Jenkins—which stated that Sack’s research objectives
were “consistent with U. Va.’s scholarly research goals,” that Sack’s requests were submitted
“on behalf of [the] institution,” and that Sack was “acting as a representative of the University of
Virginia’s Department of Politics.” (Id., Ex. 3). In NSA’s view, this proffer still fell short, and
the agency concluded that Mr. Jenkins’ contention that Sack was representing the Department of
Politics was “not supportable.” (Id., Ex. 4). While it is a close question, the Court agrees.
Professor Jenkins’ letter was wholly conclusory – while he asserted that Sack’s request was “on
behalf of the institution,” he did not specify that the request was being used to support a research
project being carried out by him, any other professor, or any department of the university.
Instead, his letter parroted the language from Sack’s original request, which was that she
24
“intend[ed] to review, evaluate, synthesize, and present the requested data, analyses, policies,
protocols, and practices in a publically available, usable form,” adding that “[t]his intention is
consistent with U. Va.’s scholarly research goals.” (Id., Ex. 3). Sack’s original request
identified her as a Ph.D. student preforming research, and NSA was entitled to conclude that her
request furthered an “individual research goal” associated with completing a course of her
graduate studies or her dissertation. Professor Jenkins’ letter could have made clear that Sack’s
research was for something other than fulfilling her course requirements, but it conspicuously
failed to do so.
In sum, all of Sack’s submissions contained vague and conclusory wording that evaded
the central question presented by the OMB fee guidelines: whether the request was for Sack’s
coursework, or whether it was for a project sponsored by the educational institution. Sack, as the
requester, had the burden of proof on this issue, and her proof was simply insufficient. To hold
otherwise would allow a student’s FOIA request supporting her coursework to fall within the
educational institution exemption, so long as the request does not mention her coursework and so
long as an instructor asserts (without explanation) that the request is “on behalf of the institution”
and that the student’s research is “consistent” with the goals of the institution. This would be an
end-run around the OMB fee guidelines. Accordingly, the Court holds that NSA did not err by
refusing to classify Sack as an “educational institution” requester for purposes of FOIA Requests
64010 and 64011. 11
11
The Court pauses to emphasize the narrow scope of its holding. In the future, Sack or
any other student requester can qualify for “educational institution” classification under FOIA by
supplying the agency with confirmation—on institutional letterhead, and written by an
appropriate official—that the research underlying the student’s request is not in furtherance of
the student’s coursework and is made on behalf of the institution and in furtherance of research
sponsored by the institution.
25
Finally, the Court need not tarry long on Sack’s alternative challenge to NSA’s policies
surrounding two free search hours. Plaintiff does not dispute that she refused to either pay fees
or commit to making any payment on the requests at issue. NSA’s requirement that Plaintiff
remit payment in the amount of $440.00, which is one-half of the total amount of the estimated
costs, minus the free search time, (Id., Ex. 2), is in accordance with its regulations, 32 C.F.R. §
286.28(e)(2)(i)(B), which unambiguously state that “a search for responsive records will not be
initiated until the requester indicates a willingness to pay assessable costs appropriate for the
category determined by the Component.” See Janosek Decl. ¶ 25. Nothing in the FOIA
precludes an agency from first requiring that the payment and scope of a request be clear before
any search is conducted. See Chaplin v. Stewart, 796 F. Supp. 2d 209, 211-12 (D.D.C. 2011)
(finding that the agency was entitled to judgment as a matter of law where agency complied with
DOJ regulations by informing plaintiff about the fee requirements and suggesting ways to reduce
his costs and plaintiff neither paid nor committed to paying the assessed fees); Saldana v. Bureau
of Prisons, 715 F. Supp. 2d 10, 16-17, 21 (D.D.C. 2010) (“because [plaintiff] neither reduced the
scope of his January 2006 request nor paid, or agreed to pay, the associated search fee, [he]
therefore has not exhausted his administrative remedies”); Research Air, Inc. v. Kempthorne, 589
F. Supp. 2d 1, 10 & n.6 (D.D.C. 2008) (agency properly refused to process a FOIA request
where the requester rejected the notion that he would be required to pay a fee and agency
“demanded only that [plaintiff] either narrow his request in order to reduce their estimated costs
or commit to future payment for the costs incurred by [the agency] in processing the search
request”).
26
CONCLUSION
For the foregoing reasons, the Court concludes that DoD’s Motion for Summary
Judgment is GRANTED. The Court already has issued an appropriate Order.
Digitally signed by Robert
Wilkins
DN: cn=Robert Wilkins, o, ou,
Date: December 13, 2013 email=Robert_L.Wilkins@dcd.us
courts.gov, c=US
Date: 2013.12.13 17:02:47
-05'00'
ROBERT L. WILKINS
United States District Judge
27